Going After the Little Guys

Submitted by Doug Lederman on September 16, 2005 - 4:00am

The U.S. Defense Department is taking another run at law schools that have refused to let military recruiters visit their campuses because of the Pentagon's stance on gay servicemen and women. But so far, the only institutions the department has singled out for possible loss of federal funds are three independent law schools. One other law school that has barred military recruiters -- Yale's -- is shielded from Pentagon retribution by a court's injunction, while Harvard's law school, which last fall declared its intention to bar military recruiters, seems to have been left alone so far.

The issue was thrust back into the public eye again Wednesday, when the Pentagon published in the Federal Register[1] a notice that New York Law School had been placed on a list of higher education institutions that are "ineligible for contracts and grants by reason of a determination by the Secretary of Defense that the institution prohibits or in effect prevents military recruiter access to the campus, students on campus or student directory information."

The Pentagon action came under a federal law, commonly known as the Solomon Amendment, that denies most federal grants and contracts (with the prominent exception of student financial aid) to colleges that deny military recruiters access to their students. The law, which was enacted in 1994 and has been expanded several times in the decade since, was designed to stem the tide of more than two dozen law schools that barred military recruiters because they said the Pentagon’s treatment of gay servicemen and women violated the institutions’ nondiscrimination policies.

When the Defense Department toughened its enforcement of the law after the attacks of September 11, 2001, citing a need to expand the size and quality of the pool of potential military officers and leaders, virtually all of the institutions that risked losing federal aid as a result of the law altered their policies to allow military recruiters some access to their students -- but a group of law schools also sued Defense Secretary Donald Rumsfeld and the department in 2002 to try to invalidate the law.

A federal appeals court ruled[2] in November that colleges had a First Amendment right to ignore the law if permitting the military to recruit conflicted with their nondiscrimination policies (a case that the U.S. Supreme Court, in May, agreed to hear[3]), and in February a federal judge, in another case involving Yale University, declared the Solomon law unconstitutional.

Harvard announced[4] in the wake of the appeals court's decision last November that it would again enforce its nondiscrimination policy and bar military recruiters, and Yale announced openly[5] after the February court decision that it was reinstating its policy barring recruiters (Yale's decision was eased by the fact that the court's ruling included an injunction that prevented the Pentagon from enforcing the law against it). But despite discussion and debate on several other law school campuses, most other institutions have declined to alter their policies while they wait for the legal picture to become clear, since the law remains in effect pending the Supreme Court's review of the case.

In the wake of Wednesday's announcement about New York Law School, a Pentagon spokeswoman said that two other law schools -- Vermont Law School and William Mitchell College of Law, in St. Paul, Minn. -- were also in violation of the Solomon amendment and faced the loss of federal funds.

In an interview Thursday, Carol Buckler, associate dean for professional development at New York Law School, said that its faculty had voted in February to reinstate its policy that "we don't extend our services to employers who have discriminatory employment practices." She said that military recruiters had sought access to the campus on three or four occasions last spring and this fall and been turned away.

"We don't have current funds in jeopardy, but this certainly would affect grants that we as an institution might seek and for which we might otherwise be eligible," Buckler said.

The president and dean of William Mitchell, Allen K. Easley, said Thursday that his institution had been on the Pentagon's list for at least two years, and that it, too, did not have any federal funds at stake.

One institution that would is Harvard. Its law school would seem to be susceptible to a challenge from the Pentagon, if it is indeed barring military recruiters as its stated policy suggests. Officials at neither Harvard nor the Pentagon could be reached to shed light on whether the law school is currently complying with the law.

But Kent Greenfield, a Boston College law professor who is president of the Forum for Academic and Institutional Rights, a group of law professors and students that challenged the Pentagon's policy in the case before the Supreme Court,said it would not surprise him if the Defense Department were looking the other way.

"They can pick off the Vermonts and William Mitchells of the world and nobody will make a fuss," Greenfield said, since no significant federal funds are at stake. "But I think the military knows better than to pick that fight [with Harvard] in the months leading up" to the Supreme Court arguments," as a finding that Harvard was out of compliance with the Solomon amendment would put at risk hundreds of millions of dollars that the university receives from the government each year.